[Note: This posting is a continuation of a report on
the development of a civics unit of study.
This unit is directing students to formulate informed positions on a
governmental topic: ground rules
overseeing tort law. It is being
developed in real time. Writer wants to
identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
Obviously,
from what has already been described, one can see tort cases being about
misfeasance and not nonfeasance. And the
question that one asks in regards with a misfeasance is straightforward: did the defendant cause harm due to some
negligence? But, with these terms, one
can begin to look at the case history that has dealt with this tension.
So,
to refer to case history, a good case with which to begin looking at this
tension emanates from the 1950s. The
case, Yania v. Bigan, in 1959,
demonstrates how bizarre the determination of whether misfeasance and
nonfeasance characterizes an incident can be.
John Bigan, the defendant, operated a coal strip-mine. Part of that operation was to dig trenches by
which to expose the coal and allow its removal.
In
one trench, in a mine in Pennsylvania, several feet of water were present. To extract the water, Bigan placed a pump in
the trench and someone needed to get in the water to start the pump. Bigan, to encourage Yania (an operator of
another strip mine) to jump in for that purpose, started taunting him.
Despite
his initial reluctance, Yania did eventually jump in and drowned. His wife, as the dead man’s survivor, filed a
suit against Bigan for wrongful death.
She, in court, emphasized Bigan’s taunting. Yet, the trial court found in favor of the
defendant and, upon appeal, the Pennsylvania Supreme Court upheld that finding.[1]
This
case provides two useful bits of conceptual information. Beyond providing an example of nonfeasance,
it helps define the boundary between nonfeasance and misfeasance. This does not mean a student need agree with
the decision. Like any case, the student
can question not only how the court treated Yania’s widow, but how it treats
anyone faced with a harm “caused” by what others say.
In
this case, the judge, Justice Benjamin R. Jones, held that Yania was a
reasonable and prudent adult who could readily see and understand the dangers,
but chose to jump in the water. The
taunting did not undo those factors nor place responsibility – negligence – on
the shoulders of Bigan. And, in
analyzing this case, a teacher can point out that while someone might hold an
emotional bias for the widow, the judges, that had any such emotions, kept them
in check. Having pointed that out,
though, a student could still see the judgement as flawed.
Beyond
the taunting, did Bigan have a duty to jump in himself and try to save the
drowning man? Here, again, the court
ruled that he did not have such a duty.
Perhaps he had a moral duty, but not a legal one. So, one can see, at least as this court
ruled, the term “stranger”[2] is
broad. And it might not extend if Yania
was a child or an infirmed person, but he was not; he was a “prudent” adult.
And
so, the law draws a line between what is good from what is legal; but why? Again, as with the question over the shift
from strict liability and negligence, there is more than one explanation. This blog has already claimed that this
aspect of tort law challenges the federalist values that define what the
nation’s constitution establishes; i.e., a citizenry that does not include
citizens who are antagonistically arranged – or, at least, indifferently
arranged – in their social interactions.
A federated citizen is expected to aid or help fellow citizens.
Before
reviewing any explanation for a judicial bias that seems to counter the ideal
of a federated citizenry, a federal value needs to be understood. That value is constitutional integrity or
federal liberty. This blog has offered
the following definition: liberty is the
freedom to do what one should do, not what one wants to do. This emanates from the writings of John
Winthrop all the way back to this nation’s colonial days.
Again,
it needs to be emphasized, this is ideal language, the espoused values of
American generations from those of colonial days to the days after World War
II. But the common law that has led to
this “un-federalist” bias predates that war and actually stretches back to British
law. Consequently, this apparent institutionalized
divergence should be addressed.
Therefore, with that historical inconsistency noted, a review of a
strain of explanations is in order.
One
account relies on a natural rights argument.
It states that liberty – a la
natural rights values – means that a person simply has the liberty to ignore
the cries of a flailing baby or stricken old man on some church steps. That sense of liberty is silent in terms of
what should be done in these types of situations – that’s up to the
individual. This view repeats the
notion: one has a right to wave his/her
hands up to where someone else’s nose begins.
While this view has a good deal of support in the legal profession,
there are other views.
A
second explanation in this line of thinking can be stated as the concern: if one places a legal obligation on one
citizen to aid another (or at least not encourage dangerous behavior), where do
the obligations end? Can the law demand
someone to do something or anything that might be needed by another party?
For
example, does that mean a person needs to bear burdens, such as money expenses,
to aid a needy party? Where does it
end? Providing duty in nonfeasance cases
opens “slippery slope” situations or, at least, that is what defenders of the
existing standard argue.
That
is, a defender of the natural rights perspective might ask: If such thinking takes hold, can public
policy demand everyone to give up income or wealth so that everyone has enough
to eat? Just to be fair: such thinking lines up with a federalist
definition of equality – what can be called regulated equality or regulated
condition. But that value is not as
stark as natural right advocates claim.
Federalist
values gauge such policy relative to a slew of factors including the wealth of
a nation. In terms of the US, the aim,
to eliminate hunger, for example, is well within the financial means of the
nation. And this debate makes one wonder
whether the debates over litigant responsibilities do not really reflect a
concern for legal principles or justice but political and/or economic interests.
But
that digresses and the concern for an inability to draw a limit on duties is
well taken. But does such a concern
trump the demand for citizens to help others when it can be demonstrated that
the conditions under question are obvious and serious in terms of another
party’s health or some other essential condition? Here, the question is asked, but not answered. It is proposed as a question for citizens to consider. Further, if the answer is yes, the solution
will not be provided by common law, but by statutory law.
Then
there is an extreme case that possibly demonstrates a serious shortcoming with
holding nonfeasance beyond tort law review.
This case does not refer to a court case. In 1964, in the borough of Queens, 38 normal
New York residents heard the cries and saw the stabbing of Kitty Genovese. None of those witnesses called the police or
provided any assistance to Ms. Genovese; she subsequently died.
Of
course, none of those observers were subject to any tort or criminal action. This case, in its extremity, brings up what
many feel is offensive by the common law’s indifference to people in serious
need. Is there a compromise between
complete indifference and mandated decrees that insist on affirmative duty to
assist those who need help, sometimes to save their lives?
Some
states have opted to what might be considered half-steps; i.e., enacting Good
Samaritan laws that mostly protect “helpers” from liability when their efforts fail
or cause further harm. Other efforts
include imposing small fines on those who fail to help someone in jeopardy of
physical harm. But there have been no
meaningful laws insisting citizens need to help one another.
So,
to refer to case history, a good case with which to begin looking at this
tension emanates from the 1950s. The
case, Yania v. Bigan, in 1959,
demonstrates how bizarre the determination of whether misfeasance and
nonfeasance characterizes an incident can be.
John Bigan, the defendant, operated a coal strip-mine. Part of that operation was to dig trenches by
which to expose the coal and allow its removal.
In
one trench, in a mine in Pennsylvania, several feet of water were present. To extract the water, Bigan placed a pump in
the trench and someone needed to get in the water to start the pump. Bigan, to encourage Yania (an operator of
another strip mine) to jump in for that purpose, started taunting him.
Despite
his initial reluctance, Yania did eventually jump in and drowned. His wife, as the dead man’s survivor, filed a
suit against Bigan for wrongful death.
She, in court, emphasized Bigan’s taunting. Yet, the trial court found in favor of the
defendant and, upon appeal, the Pennsylvania Supreme Court upheld that finding.[1]
This
case provides two useful bits of conceptual information. Beyond providing an example of nonfeasance,
it helps define the boundary between nonfeasance and misfeasance. This does not mean a student need agree with
the decision. Like any case, the student
can question not only how the court treated Yania’s widow, but how it treats
anyone faced with a harm “caused” by what others say.
In
this case, the judge, Justice Benjamin R. Jones, held that Yania was a
reasonable and prudent adult who could readily see and understand the dangers,
but chose to jump in the water. The
taunting did not undo those factors nor place responsibility – negligence – on
the shoulders of Bigan. And, in
analyzing this case, a teacher can point out that while someone might hold an
emotional bias for the widow, the judges, that had any such emotions, kept them
in check. Having pointed that out,
though, a student could still see the judgement as flawed.
Beyond
the taunting, did Bigan have a duty to jump in himself and try to save the
drowning man? Here, again, the court
ruled that he did not have such a duty.
Perhaps he had a moral duty, but not a legal one. So, one can see, at least as this court
ruled, the term “stranger”[2] is
broad. And it might not extend if Yania
was a child or an infirmed person, but he was not; he was a “prudent” adult.
And
so, the law draws a line between what is good from what is legal; but why? Again, as with the question over the shift
from strict liability and negligence, there is more than one explanation. This chapter has already claimed that this
aspect of tort law challenges the federalist values that define what the
nation’s constitution establishes; i.e., a citizenry that does not include
citizens who are antagonistically arranged – or, at least, indifferently
arranged – in their social interactions.
A federated citizen is expected to aid or help fellow citizens.
Before
reviewing any explanation for a judicial bias that seems to counter the ideal
of a federated citizenry, a federal value needs to be understood. That value is constitutional integrity or
federal liberty. This book has offered
the following definition: liberty is the
freedom to do what one should do, not what one wants to do. This emanates from the writings of John
Winthrop all the way back to this nation’s colonial days.
Again,
it needs to be emphasized, this is ideal language, the espoused values of
American generations from those of colonial days to the days after World War
II. But the common law that has led to
this “un-federalist” bias predates that war and actually stretches back to British
law. Consequently, this apparent institutionalized
divergence should be addressed.
Therefore, with that historical inconsistency noted, a review of a
strain of explanations is in order.
One
account relies on a natural rights argument.
It states that liberty – a la
natural rights values – means that a person simply has the liberty to ignore
the cries of a flailing baby or stricken old man on some church steps. That sense of liberty is silent in terms of
what should be done in these types of situations – that’s up to the
individual. This view repeats the
notion: one has a right to wave his/her
hands up to where someone else’s nose begins.
While this view has a good deal of support in the legal profession,
there are other views.
A
second explanation in this line of thinking can be stated as the concern: if one places a legal obligation on one
citizen to aid another (or at least not encourage dangerous behavior), where do
the obligations end? Can the law demand
someone to do something or anything that might be needed by another party?
For
example, does that mean a person needs to bear burdens, such as money expenses,
to aid a needy party? Where does it
end? Providing duty in nonfeasance cases
opens “slippery slope” situations or, at least, that is what defenders of the
existing standard argue.
That
is, a defender of the natural rights perspective might ask: If such thinking takes hold, can public
policy demand everyone to give up income or wealth so that everyone has enough
to eat? Just to be fair: such thinking lines up with a federalist
definition of equality – what can be called regulated equality or regulated
condition. But that value is not as
stark as natural right advocates claim.
Federalist
values gauge such policy relative to a slew of factors including the wealth of
a nation. In terms of the US, the aim,
to eliminate hunger, for example, is well within the financial means of the
nation. And this debate makes one wonder
whether the debates over litigant responsibilities do not really reflect a
concern for legal principles or justice but political and/or economic interests.
But
that digresses and the concern for an inability to draw a limit on duties is
well taken. But does such a concern
trump the demand for citizens to help others when it can be demonstrated that
the conditions under question are obvious and serious in terms of another
party’s health or some other essential condition? Here, the question is asked, but not answered. It is proposed as a question for citizens to consider. Further, if the answer is yes, the solution
will not be provided by common law, but by statutory law.
Then
there is an extreme case that possibly demonstrates a serious shortcoming with
holding nonfeasance beyond tort law review.
This case does not refer to a court case. In 1964, in the borough of Queens, 38 normal
New York residents heard the cries and saw the stabbing of Kitty Genovese. None of those witnesses called the police or
provided any assistance to Ms. Genovese; she subsequently died.
Of
course, none of those observers were subject to any tort or criminal action. This case, in its extremity, brings up what
many feel is offensive by the common law’s indifference to people in serious
need. Is there a compromise between
complete indifference and mandated decrees that insist on affirmative duty to
assist those who need help, sometimes to save their lives?
Some
states have opted to what might be considered half-steps; i.e., enacting Good
Samaritan laws that mostly protect “helpers” from liability when their efforts fail
or cause further harm. Other efforts
include imposing small fines on those who fail to help someone in jeopardy of
physical harm. But there have been no
meaningful laws insisting citizens need to help one another.
What if someone begins to help, but then changes his/her mind? Does that pose a duty? Next posting will look at these questions by looking at the 1930 case, Erie Railroad v. Stewart.
[1] Edward K.
Cheng, “Torts,” Law School for Everyone
– a transcript book (Chantilly, VA: The
Teaching Company/The Great Courses, 2017), 230-445.
[2] “Yania v.
Bigan,” Case Briefs, Yania v. Bigan, 397 Pa. 316, 155 A. 2d 343, 1959 Pa. Lexis
457 (Pa. 1959), n. d., accessed September 26, 2018, https://www.casebriefs.com/blog/law/evidence/evidence-keyed-to-waltz/nonfeasance/yania-v-bigan/
.
[3] Referring to the legal tort standard: “no duty to a stranger.”
